Friday, September 16, 2016

“Youthful Indiscretion,” Tweets and Terroristic Threats

This post examines a recent opinion from the Court ofAppeals of Minnesota: State v. Rund, 2016 WL 4162925 (2016). You can, if you are interested, read more
about the facts in the case in the news story you can access here.

The Court of Appeals begins its opinion by explaining that

[i]n this sentencing appeal, the state
challenges the district court's imposition of a 365–day stayed sentence for
respondent's terroristic-threats conviction. The record supports the district
court's determination that the offense was a result of youthful indiscretion
and thus less serious than the typical offense, justifying the one-day downward
durational departure from the presumptive sentence.

State v. Rund, supra.

The court went on to outline the facts in the case and
explain why, and how, Rund came to be charged with making terroristic
threats.State v. Rund, supra.

At approximately 1:30 a.m. on February
4, 2015, respondent Harrison William Rund, then 19 years old, was pulled over
by a state-patrol officer and ticketed for driving 68 miles per hour in a
posted 60–mile–per–hour zone. Rund later admitted to having a history of problems
with the state-patrol officer who gave him the ticket, but at the time of the
offense Rund had no previous criminal offenses. Rund went home, `had a little
bit to drink,’ and started talking to a friend on Twitter. During the Twitter discussion,
Rund got `a little more heated’ and `started saying things that I shouldn't
have said.’ In a single tweeting incident, Rund posted the following
threatening statements to his friend that hashtagged1 the
St. Paul Police and the St. Paul Police Federation:

dude its f*d up im getting so pissed
out here literally thinkin about just startin to hunt and kill cops.

f*k you st paul police im gonna kill 5
police officers today.

im lookin for Zelda boi and whichever
trooper pulled me over lastnight gave me a ticket for goin 68 in a 60.

f*k the @St.PaulPoliceFdn they don't
call me the cop killer for no reason.

Throw a grenade in the room, watch all
the coppers ka-boom.

State v. Rund, supra.

The opinion goes on to explain that the

last tweet references a song lyric and includes a photo of St.
Paul police officers.

The next day, police apprehended Rund
as he arrived home after school and work, and he was charged with making
terroristic threats, a felony. Against the advice of counsel, Rund gave a
complete confession to police, waived all trial rights, and entered a straight
guilty plea to the charge. At his plea hearing, Rund admitted that what he did
was wrong, and that he abhorred his conduct. He said, `I don't think people
should be able to say these things, and that's why, one of the reasons I am
here and not taking it to trial and stuff, because I think it was wrong, and
people shouldn't be let off if they say things like that.’

He also expressed remorse about
frightening any police officers, saying:

`[I]t wasn't my intent, you know. I
think if you scroll through my old Twitter,
I think just about everything on there was not serious, you know. Whether I was
talking crap to Jose Canseco, you know, I mean, everything on there I kind of
looked at it as kind of a joke, and I just took it way too far.’

State v. Rund, supra.

The opinion also points out that Rund

worked with a psychologist for about a
year and a half after he committed the offense, and at sentencing the district
court judge referenced a letter he had received from the psychologist stating
that Rund had made significant progress in the management of his mood and no
longer needed any treatment. Rund also sent a letter of apology to the
law-enforcement officers and a letter of remorse to the district court. Rund
testified at sentencing that he no longer uses alcohol. Rund called his offense
`really stupid,’ and said he was `really sorry,’ `kn[e]w what [he] did wasn't
right,’ and `kn[e]w that it's a big deal and shouldn't be taken lightly,’ but
he also said that the offense did not `reflect[ ] who I am.’ At the time of
sentencing, Rund was going to school full time and working 15–20 hours per
week.

State v. Rund, supra.

The court went on to explain that

[d]efense counsel moved for a downward
durational departure for three identified offense-related reasons: Rund's
remorse, Rund's intoxication, and the use of social media to commit the crime,
the last of which defense counsel argued made the offense not a `standard
terroristic threats case.’ Consistent with the sentencing guidelines, the state
sought a stayed felony sentence of a year and a day, with Rund to serve 60 days
in jail as a condition of probation.

The district court considered offender-
and offense-based arguments at sentencing. The district court judge referred to
Rund as a `young person who is going through a very tough time,’ but said that
the offense had `sparked you to take a good, hard look at not only your
drinking but your psychological issues, and you have addressed those.’ The
judge referred to the offense as `less onerous’ because of Rund's age and
mental state, and his lack of intent to `make a planned attack,’ and said that
imposition of a felony sentence would not be `in the best interests of
society.’ Over the state's objection, the district court imposed a stayed
365–day sentence and placed Rund on probation for three years, one year longer
than the probationary term provided for by law. The district court also
required Rund to serve a 120–day jail sentence, twice the duration sought by
the state. Minnesota Statutes § 609.135, subd. 2(c) (2014) (stating that a
probationary term for a gross misdemeanor offense `shall be for not more than
two years’). The state appealed.

State v. Rund, supra.

The court began its analysis of the issues and the law in
the case by explaining that

[h]istorically, it is the state's
function to investigate and determine charges for criminal conduct, and it is
the district court's function to exercise discretion in imposing a sentence. `At
one end of t[he] spectrum, bringing charges and plea bargaining, the discretion
rests almost entirely with the prosecutor. At the other end of the spectrum,
[in] the imposition of the sentence ..., the discretion rests almost entirely
with the court.’ State v. Streiff, 673 N.W.2d 831, 836
(Minnesota Supreme Court 2004).

The state challenges the district
court's decision to impose a sentence that constitutes a one-day downward
durational departure from the presumptive sentence. `The district court must order
the presumptive sentence provided in the sentencing guidelines unless
substantial and compelling circumstances warrant a departure.’ State v.
Pegel, 795 N.W.2d 251, 253 (Minnesota Court of Appeals 2011) (quotation
omitted). Substantial and compelling circumstances are those that make the case
atypical. Taylor v. State, 670 N.W.2d 584, 587 (Minnesota
Supreme Court 2003). The district court has discretion to decide whether to
depart at sentencing, and this court will reverse only if the district court abused
its discretion. State v. Pegel,
supra.

State v. Rund, supra.

The court went on to point out that the

presumptive punishment for Rund's
conviction of terroristic threats is a felony sentence. Minnesota Statutes § 609.713, subd. 1 (2014) (permitting sentence of `not more than five
years’). A `felony’ is defined as `a crime for which a sentence of imprisonment
for more than one year may be imposed.’ Minnesota Statutes § 609.02, subd. 2(2014). A `gross misdemeanor’ is defined as `any crime which is not a felony or
misdemeanor.’ Minnesota Statutes § 609.02, subd. 4 (2014). But when the
district court imposes a gross-misdemeanor sentence on a felony offense, the
law deems the conviction a gross misdemeanor. Minnesota Statutes § 609.13,
subd. 1(1) (2014). The imposition of a gross-misdemeanor sentence for a felony
conviction with a presumptively stayed sentence is a downward durational
departure. State v. Bauerly, 520 N.W.2d 760, 762 (Minnesota
Court of Appeals 1994) (ruling that imposition of a 365–day gross-misdemeanor
sentence on a felony theft conviction with a presumptive guidelines sentence of
366 days constituted a downward durational departure), review denied (Minnesota Supreme Court Oct. 27, 1994).

State v. Rund, supra.

The Court of Appeals then explained that

[s]entencing factors specific to the
offender can support a dispositional departure, but they cannot be used to
support a durational departure. State v. Peter, 825 N.W.2d
126, 130 (Minnesota Court of Appeals 2012) (enumerating offender-related
factors such as remorse, clean record, offender's youth, family support, and
offender's ability to obtain education and employment), review denied (Minnesota
Supreme Court Feb. 27, 2013). Offense-related factors, however, can support a
durational departure. State v. Peter, supra. On a motion for a
durational departure, the district court must examine `whether the defendant's
conduct was significantly more or less serious than that typically involved in
the commission of the crime in question.’ State v. Cox, 343
N.W.2d 641, 643 (Minnesota Supreme Court 1984).

State v. Rund, supra.

The court went on to explain that the “record” in this case

demonstrates that the district court
relied on both offender- and offense-related factors in imposing the durational
departure. To the extent that the district court weighed Rund's remorse in
departing, it was improper to do so under the facts presented. Lack of remorse
may be used to justify a durational departure, but only if the `remorse is
directly related to the criminal conduct at issue and made that conduct
significantly less serious than the typical conduct underlying the offense of
conviction.’ State v. Solberg, __
N.W.2d __, 2016 WL 4051620 at *6 (Minnesota Supreme Court July 27, 2016).
Rund's remorse for his crime occurred after its commission and did not alter
the seriousness of the crime itself. Further, the second ground argued by
defense counsel for departure, Rund's voluntary intoxication, does not make him
less culpable. See Minnesota Sentencing Guidelines 2.D.3.a.(3)
(2014) (specifically excluding `[t]he voluntary use of intoxicants’ as a factor
to be considered at sentencing); State v. Cizl, 304 N.W.2d
632, 634 (Minnesota Supreme Court1981) (stating that a defendant's
voluntary intoxication at the time of the offense may not be used to justify a
downward departure).

State v. Rund, supra.

The court went on to explain that,

[b]ut `a single mitigating factor may
provide a substantial and compelling reason to impose a downward durational
sentencing departure if it shows that the defendant's conduct in committing the
offense of conviction was significantly less serious than that typically
involved in the commission of the offense in question.’ State v. Solberg, supra. The district court
concluded that the offense was committed in a less serious manner than the
typical terroristic-threats offense. This is an offense-related factor that was
permissible for a durational departure. On the seriousness of the offense,
the sentencing judge said,

`I don't think you had the intent to do
it. You didn't have a gun. You weren't going out to try to search where they
live. You weren't going to make a planned attack. You just wanted to send
a tweet out to affect
as many people as you can, and that worked. As far as taking steps to follow
up, you had no intention.’

State v. Rund, supra.

The opinion then points out that the

sentiment expressed by the district
court is supported by the fact that some of Rund’s tweets were quotes of inflammatory song lyrics or were
references frequently used in gangster rap. The use of language that expresses
approval of violence against police, while disturbing in this case, may not
indicate actual intent to `kill a cop’ and may merely constitute a protest
against police conduct. See, e.g., Rob Hustle ft. Bump, Call
the Cops (Youtube 2014); N.W.A., F[-]k tha Police, on Straight
Outta Compton (Andre Young, Antoine Carraby 1988). Defense counsel also argued
that terroristic-threats crimes typically involve either making threats
face-to-face or sending them in the mail, both of which demonstrate greater
intent and more serious conduct than was shown by Rund. Rund's conduct, made
with use of a hashtag on social media, was more like a taunt than a
threat. See, e.g., Elonis v. United States,135 S.Ct. 2001, 2012 (2015) (reversing federal conviction for making threatening
communications based on offender's statements posted on the Facebook social
media website, when the evidence was insufficient to prove that the offender intended
to issue a threat or knew that the communication would be viewed as a threat);
Elise Moreau, 10 Types of Internet Trolls You'll Meet Online http://webtrends.ab
out.com/od/Internet–Culture/tp/10–Types–of–Internet–TrollsYoull–Meet–Online.htm
(noting the phenomenon of internet `trolling’ in which individuals `deliberately
tr[y] to disrupt, attack, offend or generally cause trouble within the
[internet] community by posting certain comments, photos, videos, GIFs or some
other form of online content’).

The terroristic threats statute under
which Rund was convicted includes
a broad range of conduct and a broad range of intent. The crime is defined as `threaten[ing],
directly or indirectly, to commit any crime of violence with purpose to
terrorize another ... or in reckless disregard of the risk of causing such
terror.’ Minnesota Statutes § 609.713, subd. 1. The intent element of the
offense includes either intent to do the act or reckless conduct that results
in the act. Minnesota Statutes § 609.713, subd. 1. The prohibited conduct
thus includes direct threats made with the purpose to terrorize as well as
indirect threats made recklessly that result in causing terror. Minnesota
Statutes § 609.713, subd. 1.

State v. Rund, supra.

The court went on to explain that,

[g]iven the broad spectrum of
prohibited conduct and broad range of intent included in the definition of the
offense, we cannot conclude that the district court abused its discretion by
weighing this case against others of its kind and concluding that Rund's
offense was less serious than the typical offense. The district court's
determination of Rund's lack of intent is clearly supported by the record,
including Rund's testimony that he used Twitter jokingly but that his conduct got out of hand in this
instance. The district court's statement that Rund `did not intend to do it’ is
supportive of its conclusion that Rund's conduct demonstrated only recklessness
and not specific intent to terrorize. Such conduct meets the definition of the crime
but is also reflective of an `internet sensibility’ of social-media users who
rely on alter-egos to express hostile thoughts and invective that are not
intended to leave the social-media arena. While this conduct might be
actionable under the law, it is not as serious as other terroristic-threats
offenses.

This court has affirmed a district
court's exercise of discretion to impose a downward durational departure when
the conduct of the offender did not involve the typical crime for which the
offender was sentenced. State v. Bendzula, 675 N.W.2d 920, 924 (Minnesota
Court of Appeals 2004). In Bendzula, this court affirmed the
district court's downward d urational departure in sentencing on a
controlled-substance crime where the offender was less culpable than the
typical offender. State v. Bendzula, supra. There, this court
stated, `Because the [district] court in this case dealt with the departure
issue both deliberatively and thoroughly, and because the court adequately
identified considerations favoring its downward departure that were both
atypical and substantial, we must defer to its judgment.’ State v.
Bendzula, supra.

Similarly here, we uphold the district
court's exercise of its sentencing discretion where the offense is less onerous
than the typical offense; our ruling is consistent with the equitable goal of
the sentencing guidelines to punish offenders who have committed similar
conduct by imposing similar sanctions on them. State v. Bendzula, supra
(noting that the sentencing `guidelines expressly enlarge the [district]
court's discretion when assessing reduced culpability and determining a downward
departure’).

We affirm the district court's
imposition of a one-day downward durational departure from the presumptive
sentence but modify Rund's sentence to reduce the three-year probationary term
to two years, the limit provided for by law. SeeMinnesotaStatutes § 609.135, subd. 2(c).

State v. Rund, supra.

One of the Court of Appeals Judges dissented, explaining, in
brief, that

I would reverse. The district court
abused its discretion, and this court errs by holding that, so long as one
isn't really `going to make a planned attack’ to carry out his apparently
credible threat to blow up five specific police officers in a specific agency
on a specific day, he has a `substantial and compelling’ reason to receive a
substantially lower sentence because he has established that his is a
less-than-typical threats case. If this multiple-specific-cop-killing threats
case really is so exceptionally less serious than the
`typical’ threats case, what must that case look like?